United States Court of Appeals
For the First Circuit
No. 05-1383
UNITED STATES,
Appellee,
v.
WILLIAM FELIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lipez, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Lawrence A. Vogelman for appellant.
Rachel E. Hershfang, Assistant U.S. Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
June 27, 2006
STAHL, Senior Circuit Judge. William Feliz was convicted
of conspiring to possess and distribute heroin and was sentenced to
a prison term of 97 months' duration. He now challenges the
district court's decision not to reduce his sentence under the
safety-valve provision of the Sentencing Reform Act, 18 U.S.C. §
3553(f) (2000), and contends that the district court misunderstood
the Supreme Court's then-recent decision in United States v.
Booker, 543 U.S. 220 (2005). We affirm the sentence imposed by the
district court in all challenged respects.
In November 2001, William Feliz was by all appearances a
law-abiding family man who owned and ran a successful barbershop in
New York.1 In December, for reasons unexplained, Feliz took up a
rather surprising and ultimately disastrous new career as a
middleman in a heroin trafficking enterprise. His problems began
when he arranged an introduction between two men, Jorge Ariel Abreu
and Johnny Ciriaco. Ciriaco was looking for a heroin supplier for
his drug distribution enterprise in Massachusetts, and Feliz put
the two in contact and hosted a meeting at his barbershop. Feliz
agreed to act as a sort of guarantor for Ciriaco, committing to
Abreu that he would ensure that Abreu received payment for drugs
sold to Ciriaco and Ciriaco's partner, Jose Miguel Hiciano Amaro.
1
The district court accepted the presentation of facts related
in the presentence report, and we relate the facts as stated in
that report.
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The day after the meeting, Abreu delivered 400 grams of
heroin directly to Ciriaco, and Feliz shortly thereafter made
payment to Abreu. A second shipment, of an amount somewhere
between 500 and 800 grams, was delivered directly to Feliz's
barbershop, and Feliz stored the drugs there until they were picked
up by Ciriaco. A third delivery took place elsewhere in New York,
when Abreu ultimately delivered 200 grams of heroin directly to
Hiciano and Ciriaco (who had actually requested 500). The evidence
at trial was inconsistent as to whether Feliz had any involvement
in this last transaction. On multiple other occasions, Feliz acted
as a financial intermediary, collecting funds from Hiciano,
Ciriaco, and others and delivering them to Abreu.
Feliz was indicted on a single heroin distribution count
on January 23, 2003. He was later added as a defendant in a Second
Superceding Indictment in a criminal case consolidating the charges
against multiple members of the conspiracy, and the original
solitary indictment was dropped. Multiple superseding indictments
followed. In October 2004, Feliz was charged in a Fifth
Superceding Indictment with one count of conspiring to possess and
distribute heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1).
He went to trial on November 1, 2004, and on November 8 a jury
returned a guilty verdict. The jury indicated on a special verdict
form that Feliz was responsible for at least 700 grams but less
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than one kilogram of heroin. On February 2, 2005, the district
court held a sentencing hearing.
Because Feliz had no prior convictions, the court
determined that Feliz's Criminal History Category was I. On the
basis of the jury verdict, the court found that Feliz was
responsible for between 700 grams and one kilogram of heroin,
resulting in a base offense level of 30 under USSG § 2D1.1. The
only question raised at the hearing as to the applicability of any
Guidelines provision was whether Feliz merited a two-level
reduction under what is known as the safety-valve provision of the
Sentencing Reform Act, 18 U.S.C. § 3553(f)(1)-(5), reiterated in
the Guidelines at USSG § 5C1.2. Without the reduction, the
Guidelines-recommended sentencing range was 97 to 121 months'
imprisonment, while with the reduction the range would have been 78
to 97 months.
The sentencing safety-valve provision offers a criminal
defendant an incentive to fully disclose all information known to
him by offering a modestly reduced sentence for such disclosure.
Its first four factors describe the kind of defendant and kinds of
crimes to which the safety-valve provision may apply,2 and Feliz
satisfied all four of these criteria. As in many of our safety-
2
Generally speaking, the provision is only available to
defendants with little criminal history who did not have a
leadership role in the offense, and it is only available where the
crime committed did not involve violence or firearms or otherwise
result in serious injury.
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valve cases, the battleground was the fifth factor, which is the
heart of the provision: the fifth factor requires that "the
defendant has truthfully provided to the Government all information
and evidence the defendant has concerning the offense or offenses
that were part of the same course of conduct or of a common scheme
or plan." 18 U.S.C. § 3553(f)(5); USSG § 5C1.2.
The safety-valve provision is typically satisfied by a
defendant who makes himself available to the government for a
debriefing, United States v. Montanez, 82 F.3d 520, 523 (1st Cir.
1996), and here Feliz did answer the government's questions in an
initial session held in anticipation of his entering a guilty plea.
Subsequent to the meeting, Feliz changed his mind and exercised his
right to trial. While the prosecutor initially was convinced that
Feliz had made full disclosure at the debriefing session, she
asserted to the district court that in preparing for trial and
after hearing the testimony given at trial, she had reached the
conclusion that Feliz had withheld certain information and
mischaracterized his role in the offense in other ways. The
government noted, as an example of the inconsistencies, that Feliz
had failed to mention the second of the three transactions
discussed above. Feliz contended to the contrary that he had given
substantially all of his information to the government during the
debriefing by faithfully answering all the questions asked of him.
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The court agreed with the government's position and declined to
apply the safety valve.
Feliz next urged the court to consider factors not taken
into account in the Guidelines and impose a lower sentence than the
Guidelines recommended, but the court, satisfied with the
Guidelines recommendation, sentenced Feliz to a 97-month prison
term. Feliz now appeals both the decision not to give him the
benefit of the safety-valve provision and the sentence as a whole.
As to the safety valve application, there is little to
Feliz's argument. Feliz urges, in essence, that the court made
insupportably thin findings of fact as to whether he had made full
disclosure. At the sentencing hearing, the court heard argument on
whether the safety-valve criteria were met. The government
recommended to the court that the safety valve not be applied.
Immediately afterwards, the court imposed sentence, opting to
follow the government's recommendation.
The only potentially troubling aspect of the case is that
the court did not itself recite the particular respects in which
the defendant's account at his initial proffer differed from the
testimony of other witnesses at trial. To some extent,
deficiencies in the court's fact-finding implicate a procedural
concern, i.e., the requirement that a district court provide a
clear explanation of its reasoning sufficient to allow meaningful
appellate review, which is intermingled here with Feliz's strict
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contention that the court's factual conclusion that he had not
fully disclosed was erroneous.
Our review of a district court's decision whether or not
to apply the safety value is ordinarily for clear error, United
States v. Marquez, 280 F.3d 19, 22 (1st Cir. 2002), which means
that "we ought not to upset findings of fact or conclusions drawn
therefrom unless, on the whole of the record, we form a strong,
unyielding belief that a mistake has been made." Id. at 26
(quoting Cumpiano v. Banco Santander, 902 F.2d 148, 152 (1st Cir.
1990)). But that standard is more appropriate in a case where the
district court notes and explains particular omissions or
misrepresentations in a defendant's proffer. See United States v.
Matos, 328 F.3d 34, 40 (1st Cir. 2003) ("Our obligation to accord
substantial deference to the sentencing court is best carried out
-- particularly in close cases -- if that court shares its basis
for concluding that the disclosure efforts fell short.").
Here, however, while the district court engaged in a
colloquy with the parties on the applicability of the safety valve,
it did not state its reasons for not applying it. Where the basis
for the district court's determination is unclear, it is incumbent
upon us to vacate, though not necessarily to reverse, if we have
substantial doubts about the supportability of the district court's
determination. See United States v. Olbres, 99 F.3d 28, 30 (1st
Cir. 1996); United States v. Curran, 967 F.2d 5, 7 (1st Cir. 1992).
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We can sometimes divine the necessary clarity, and thus salvage a
poorly explained judgment, by "comparing what was argued by the
parties or contained in the pre-sentence report with what the judge
did" and inferring the court's reasoning. United States v. Jimenez
Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc).
The government pointed to at least one specific and
significant fact that Feliz failed to divulge to the government:
there were three major drug transactions at issue in Feliz's case,
and Feliz did not disclose his involvement in the second of these
in his initial proffer. It also asserted that Feliz had attempted
to play down his involvement in the charged conspiracy and had
generally not been forthcoming. It was the defendant's burden "to
persuade the district court that he ha[d] 'truthfully provided' the
required information and evidence to the government," United States
v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996) (quoting United
States v. Flanagan, 80 F.3d 143, 145-47 (5th Cir. 1996)), and faced
with a damning example of inconsistent testimony, Feliz's burden
was the higher because he had to overcome affirmative arguments
that he had not been truthful.
Had Feliz made a credible effort to rebut the
government's assertions that he was involved in the second
transaction and that he omitted to disclose other material
information during his debriefing, we would have more difficulty
discerning the district court's reasoning, but as things stand it
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is clear that the district court credited the government's account
-- and acted properly in doing so. Feliz conceded that there were
variances between his proffered information and the testimony
presented at trial. As to the particular omission of a full
account of the second transaction, Feliz argued that the testimony,
given by one of his co-conspirators, might have been false. As to
the other scattered omissions (acknowledged by Feliz although never
described in detail by the government or the court), Feliz argued
that he had truthfully responded to all questions put to him and
that any resulting omissions should not be counted heavily against
him.
The first point carries little weight: it was for the
district judge to assess the credibility of the varying accounts,
and while the court did not explicitly adopt the government's
assertions as to specific examples of inconsistencies, all
indications are that the court was swayed by the government's
argument.3 As to the second point, a purpose of the safety-valve
3
Feliz implicitly argued that he knew nothing of the second
transaction. The argument went that: 1) the government's theory
was that Feliz was responsible for more than one kilogram of
heroin; 2) the jury found that he was responsible for less than
that amount; and 3) the jury's disagreement with the government was
best explained by the jury discrediting Abreu's testimony that
Feliz was involved in the second transaction. The court, however,
found that the second transaction did take place and did involve
Feliz. Feliz's points in challenge to the finding are not
persuasive: the jury's verdict may be explained on multiple,
perhaps more likely, grounds as well, and in any event the jury's
determination that a fact was not proved beyond a reasonable doubt
would not preclude the court finding the same fact proven by a
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provision is to encourage defendants to come forward with
information that the government might not already have. The
emphasis on full disclosure means that the issue is not whether a
defendant accurately answered questions put to him: the defendant
has to volunteer information even if the government fails to ask
for it. See Matos, 328 F.3d at 38. Of course a court must be fair
and practical in determining the scope of a defendant's burden to
disclose information about which he is not asked, for a defendant
may in good faith omit to disclose information he could not imagine
was relevant, and there will be cases where he ought not to suffer
for such an omission. Here, however, Feliz's integral
participation in a major drug transaction had to be disclosed. In
light of the defendant's concessions that the information he gave
was inconsistent with information given at trial and the court's
evident acceptance of the government's account, and given the fact
that the burden was on the defendant to demonstrate full
disclosure, we do not think the district court erred in refusing to
apply the safety-valve provision.4
preponderance of the evidence.
4
On appeal, Feliz does not sufficiently rebut the government's
specific allegations that he failed to fully disclose, either by
registering equally specific denials of the accuracy of the
government's assertion that such an inconsistency existed or by
specifically explaining it. This further heightens our comfort
with the district court's conclusion.
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What is left is the contention that the court
misunderstood Booker when it imposed sentence. Booker, of course,
rendered the Guidelines advisory, giving the district courts a
freer hand to fashion appropriate sentences. The court here,
however, did not exercise its newfound freedom, concluding that the
Guidelines-recommended sentence was appropriate. Feliz's argument
comes down to this: "By stating that given the legislative
framework the guidelines sentence was reasonable, the court was
giving dispositive weight to the guidelines. The court's sentence,
therefore, was in violation of the mandate of [Booker]." The
argument turns on the fact that the court stated, in a closing
admonition to Feliz, "I am sorry it's come to this, but the law, as
[defense counsel] points out, when it comes to drugs is hard." The
inference Feliz draws is that this statement reflects the court's
erroneous belief that it had no choice but to punish Feliz
according to the Guidelines.
The only claim, therefore, is a claim of legal error:
that the court simply misunderstood the import of Booker. But the
court elsewhere expressly indicated its understanding that Booker
"clearly struck the two mandatory provisions of the Guidelines and,
rather, counsels that the court use the Guidelines as a basis for
departure in its analysis of what is or is not reasonable in any
given sentencing context." We do not mean to endorse this
statement as a precise formulation of the meaning of Booker -- our
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developing case law on the topic does that job -- but the statement
was enough to satisfy defense counsel at sentencing, who indicated
immediately his agreement that he and the court were "on the same
page." Because defense counsel accepted this formulation of the
law and raised no subsequent objection to the court's understanding
or application of Booker in the case, our review is for plain
error, and we find none. The court's understanding of Booker was
substantially correct and worked no injustice here sufficient to
clear the hurdle of our plain error review.
The sentence imposed by the district court is affirmed.
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